Wing v. Hurlburt

The opinion of the court was delivered by Williams, Ch. J. The principal question in this case is, whether the defendant is liable to the plaintiff, for professional services, rendered for the wife of the defendant, in procuring a divorce from him, and in resisting the petition, which he preferred for the same purpose. There was no engagement or employment of the plaintiff by the defendant, but the services were evidently performed, contrary to his wishes and inclination; and if he is liable, it is on his assent, as resulting from the circumstances of the case, implied by law, even against his express wishes. The husband is liable for necessaries furnished his wife, under such circumstances that it may be presumed he would have consented ; but this usually means necessary [614] meats, drinks, clothing, medicines, &c. When he turns ^el ou* doors, without fault on her part, or she is compelled to abandon his house on account of his cruelty, she carries with her a credit for such necessary articles as may be esgentjaj, maintenance and support, and every thing necessary for her safety and preservation. For this purpose, legal assistance has been deemed, in some cases, to come within the meaning of necessaries, for which the husband is liable. To exhibit articles of peace against him, to lay him under bonds to keep the peace towards her, is necessary for her personal security, to protect her from personal violence. This was the decision of Lord Ellenborough in the case of Shepherd v. Mackoul, 3 Camp. 326. When the wife was compelled to institute proceedings against him, in law and equity, to compel him to furnish her with a support and maintenance, the legal assistance furnished was deemed necessaries, for which the husband was made liable. Williams v. Fowler, cited in Clancy’s Rights of Married Women, 52. In all such cases, it is for a jury to- determine whether her treatment was such as to justify any person in furnishing her with support, or legal assistance, contrary to- the wishes of the husband, and where the law will declare his assent thereto. But to dissolve the bonds of matrimony between them, on her request, or to resist his petition for that purpose, cannot be considered as necessary for her safety or preservation, so as to enable her to procure professional assistance therefor, on his credit and at his cost. No case is found where this was ever attempted. In the ecclesiastical courts in England, costs may be decreed in any case when the court think proper. Hence it is not unusual to decree costs to-be paid by the husband, in suit for a divorce. The case of D’Aguilar v. D’Aguilar, 3 Eccl. R. 329, was of this description. The courts may, in such case, decree temporary alimony, while the suit is pending, not only for the support óf the wife, but to enable her to proseeute or defend the same. But all the powers of this court on the subject of divorce are given by statute, and the court is not authorized, either to decree temporary alimony, or award costs. Harrington v. Harrington, 10 Vt. R. 505. As the legislature have not thought proper to authorize the [615] court to give cost in such case, (and the reasons are obvious and forcible, why they should not) we cannot indirectly amerce the losing party, with the expense of the proceeding, as we should if a judgment for the plaintiff could be had in this case. If such a recovery can be had in a court of law, it would necessarily lead the auditors or jury, to reexamine the ground on which the court proceeded in granting the divorce; whether the evidence showed either the necessity or expediency of prosecuting or defending the petition. Or else, to avoid this inquiry, a recovery must be permitted against the husband for professional assistance rendered in all eases of an unsuccessful application on his part, if it was defended by the wife, and in all cases of successful application on her part. The refusing the petition in the one case, and granting it in the other, would imply a fault and neglect of duty in the husband. And the rule could not be reciprocal, if the wife was the guilty party, or preferred a slanderous and groundless petition, unless she or her friends could be compelled to give him security for costs in case of failure. The objections to a recovery are so formidable, and the case is so wholly unsupported by precedent, that we are not prepared to adopt a new principle in relation to the liability of the husband, and sustain an action where none has heretofore been brought or sustained. The plaintiff, therefore, cannot recover of the defendant for professional services rendered on either of the petitions, brought by the defendant or his wife. The question in relation to the tender was decided in the case of Pratt v. Gallup, 7 Vt. 344. Where a party intends to rely upon a tender, he cannot make the tender on the trial before the auditors, but must bring the money into court. It was also decided, in that case, that goods or services furnished or rendered, after the commencement of the suit, became a part of the account, and the party furnishing or rendering them, was not obliged, at a time subsequent to the charge, and while the suit was pending, to receive the pay for a single charge, at the hazard of having this payment turn the suit against him. If this produces either inconvenience or injustice, it cannot be remedied by the court, but must be the subject of legislative enactment. The judgment of the county court is reversed, and judgment [616] will be rendered for the plaintiff to recover the other part his account, amounting to two dollars, seventy-one cents. The defendant will recover his cost in this suit, to be deducted from the cost awarded to the plaintiff in the county courL